child living, wherein any child he might have is not provided for, or mentioned, if at the time of his death he leave a child, or leave his wife enseint of a child, which shall be born, shall have no effect during the life of such after born child, and shall be void unless the child die without having been married, or before he or she shall have attained the age of twenty-one years. When a testator shall leave children born, and his wife Posthumous enseint, the posthumous child or children, if neither be children preunprovided for by settlement, and be neither provided for nor disinherited, but only pretermitted by the last will and testament, shall succeed to the same portion of the father's estate, as such child would have been entitled to, if the father had died intestate; towards raising which portion, the devisees and legatees shall contribute proportionably out of the parts devised and bequeathed to them by the same will and testament. termitted IV. No person under the age of eighteen years shall Disposition be capable of disposing of his chattels by will. of chattels, by will. V. No nuncupative will, shall be established unless Nuncupative it be made in the time of the last sickness of the de- wills. ceased, at his habitation, or where he hath resided for ten days next preceding, except where the deceased is taken sick from home and dies before he returns to such habitation; nor where the value exceeds ten pounds, unless it be proved by two witnesses that the testator called on some person present to take notice or bear testimony that such is his will, or words of the like import. VI. After six months have elapsed from the time of speaking the pretended testamentary words, no testimony shall be received to prove a nuncupative will, unless the testimony, or the substance thereof, shall have been committed to writing within six days after making the will. When not of force. wills of chat. VII. No will in writing or any devise therein of Revocation of chattels, shall be revoked by a subsequent will, codicil, tels. or declaration, unless the same be in writing. VIII. Any soldier in actual military service, or any Wills by sol. mariner or seaman being at sea, may dispose of his diers and sailchattels as he might heretofore have done. ors. IX. If any person shall subscribe his name, as a wit- Witness, a ness to a will wherein any bequest is given to him, if legatee. the will may be not otherwise proved, the bequest shall be void, and such witness shall be allowed and com of courts, as to probats. pellable to appear and give testimony on the residue of the will, in like manner as if no such bequest had been made. But if such witness would be entitled to any share of the testator's estate in case the will were not established, so much of his said shares shall be saved to him as shall not exceed the value of the legacy bequeathed him. X. The several county, city, or corporation courts, Jurisdiction shall have power to hear and determine all causes, matters, suits, and controversies, testamentary, arising within their respective jurisdictions, and to examine and take the proof of wills, and grant certificates thereof according to the methods and rules following, that is to say: If any testator shall have a mansion house or known place of residence, his will shall be proved in the court of the county, city, or corporation wherein such mansion-house or place of residence is: If he hath no such place of residence, and lands be devised in the will, it shall be proved in the court of the county, eity, or corporation wherein the lands lie, or in one of them where there shall be lands in several counties: And if he hath no such known place of residence, and there be no lands devised, then the will may be proved either in the court of the county, city, or corporation where the testator shall die, or that wherein his estate, or the greater part thereof, shall be, or such will may in any case be proved in the general court. When probat may be received. Validity of will, how contested. Evidence, on XI. When any will shall be exhibited to be proved, the court having jurisdiction as aforesaid, may proceed immediately to receive the proof thereof, and grant a certificate of such probat: If however, any person interested, shall within seven years afterwards appear, and by his bill in chancery contest the validity of the will, an issue shall be made up, whether the writing produced be the will of the testator or not, which shall be tried by a jury, whose verdict shall be final between the parties; saving to the court a power of granting a new trial for good cause, as in other trials; but no such party appearing within that time, the probat shall be forever binding. XII. In all such trials by jury, the certificate of the trial of issue: oath of the witnesses, at the time of the first probat, shall be admitted as evidence, to have such weight as the jury shall think it deserves. XIII. No nuncupative will shall be proved within Nuncupative fourteen days after the death of the testator, nor until wills, when proved. his widow (if any) and next of kin shall have been summoued to contest the same if they please. XIV. If the general court, or any county, city, or Production of corporation court, having jurisdiction as aforesaid, wills, how compelled shall be informed that any person hath the will of a testator in his custody, such court may summon such person, and by a proper process compel him to produce the same. XV. If the executors named in any will shall all re Administra. fuse the executorship, or being required to give securi- tion with the ty, as herein after-mentioned, shall refuse, or fail to will annexed, give the same, which shall amount to a refusal, of the when executorship, in either case, the court having jurisdiction as aforesaid, may receive the proof of the will, and grant a certificate for obtaining letters of administration with the same annexed, to the person to whom administration would have been granted if there had been no will of the deceased. annexed. XVI. Before granting a certificate of the probat of Oath of exeany will, the executor or administrator with the will cutor or adannexed, as the case shall be, shall in open court take ministrator, the following oath, to wit: "You shall swear that this with the will writing contains the true last will of the within named , as far as you know or believe; and that you will well and truly perform the same, by paying first his debts, and then the legacies contained in the said will, as far as his goods, chattels, and credits will extend and the law charge you; and that you will make a true and perfect inventory of all the said goods, chattels, and credits, as also a just account when thereto required." And shall also give bond in such pen- Bond alty as will be equal to the full value of the estate at the least, and with such security as shall be approved of by the court, with the following condition, to wit:"The condition of this obligation is, that if the said executor of the last will and testament (or administrator with the will annexed, of all the goods, chattels, and credits) of deceased, do make a true and perfect inventory of all To whom bond paya ble, and how prosecuted. When no se. ed. be thereto required by the said court; and the same ; then this obligation to be void, or else to remain in full force." XVII. Which bond shall be payable to the judges or justices sitting in court, and their successors, and shall not become void upon the first recovery, but may be put in suit and prosecuted from time to time, by, and at the costs of any party injured, by a breach thereof, until the whole penalty be recovered thereupon. XVIII. But where any testator shall leave visible curity requir estate, more than sufficient to pay all his debts, and by will shall direct that his executors shall not be obliged to give security, in that case no security shall be required, unless the court shall see cause from their own knowledge, or the suggestions of creditors or legatees to suspect the executors of fraud, or that the testator's personal estate will not be sufficient to discharge all his debts, and shall require security, when the same shall be given, before a certificate shall be granted, notwithstanding any directions to the contrary in the testator's will. Power of ex ecutors be XIX. The power of executors over their testator's estates before probat of the will, is not hereby restrainfore probat. ed, but shall continue as heretofore. Curator appointed, du ring contest about a will. XX. During any contest about a will, or in the absence of executors, or whenever the court, from any other cause, shall judge it convenient, they may appoint any person or persons to collect and preserve the estate of any decedent, until a probat of his will, or administration of his estate, be granted, taking bond and security for collecting the estate, making an inventory thereof, and safe keeping and delivering up the same, when required, to the executors or administrators. will, when XXI. When any widow shall not be satisfied with Widow dossa. the provision made for her by the will of her husband, tisfied with she may within one year from the time of his death, and how she before the general court, or court having jurisdiction may reof the probat of his will as aforesaid, or by deed, exe- nounce. cuted in the presence of two or more credible witnesses, declare that she will not take, or accept the provision made for her by such will, or any part thereof, and renounce all benefit which she might claim by the same will, and thereupon such widow shall be entitled to one-third part of the slaves whereof her husband Her dower died possessed, which she shall hold during her life, thereupon. and at her death they and their increase shall go to such person or persons to whom they would have passed and gone if such declaration had not been made; and she shall moreover be entitled to such share of his other personal estate as if he had died intestate, to hold to her as her absolute property; but every widow, not making a declaration within the time aforesaid, shall have no more of her husband's slaves and personal estate, than is given her by his will. Widow re er slaves. XXII. And that if any widow possessed of a slave or slaves as of the dower of her husband, shall remove, moving dow or voluntarily permit to be removed out of this commonwealth, such slave or slaves, or any of their increase, without the consent of him or her in reversion, such widow shall forfeit all and every such slave or slaves, and all other the dower which she holds of the endowment of her husband's estate, unto the person or persons that shall have the reversion thereof; any law, custom, or usage to the contrary, notwithstanding. er slaves. XXIII. And if any widow possessed as aforesaid, Husband of shall be married to a husband who shall remove, or widow revoluntarily permit to be removed of this common- moving dow. wealth, any such slave or slaves, or any of their increase, without the consent of him or her in reversion; in such case it shall be lawful for him or her in reversion to enter into, possess, and enjoy all the estate which such husband holdeth in right of his wife's dower for and during the life of the said husband. XXIV. All original wills shall be recorded, and Wills to be shall also remain in the clerk's office of the court recorded, and wherein they are respectively proved, except during clerk's office. VOL. XII. T remain in |